Mental Capacity Bill

House of Commons

Session 2004 - 05
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Mental Capacity Bill

Mental Capacity Bill
Schedule 1 — Lasting powers of attorney: formalities
Part 1 — Making instruments
35

Schedules
Schedule 1
Section 9

Lasting powers of attorney: formalities
Part 1
Making instruments
5
General requirements as to making instruments
1     (1)
An instrument is not made in accordance with this Schedule unless—
(a)
it is in the prescribed form,
(b)
it complies with paragraph 2, and
(c)
any prescribed requirements in connection with its execution are
10
satisfied.
      (2)
Regulations may make different provision according to whether—
(a)
the instrument relates to personal welfare or to property and affairs
(or to both);
(b)
only one or more than one donee is to be appointed (and if more than
15
one, whether jointly or jointly and severally).
      (3)
In this Schedule—
(a)
“prescribed” means prescribed by regulations, and
(b)
“regulations” means regulations made for the purposes of this
Schedule by the Lord Chancellor.
20
Requirements as to content of instruments
2     (1)
The instrument must include—
(a)
the prescribed information about the purpose of the instrument and
the effect of a lasting power of attorney,
(b)
a statement by the donor to the effect that he—
25
(i)
has read the prescribed information or a prescribed part of it
(or has had it read to him), and
(ii)
intends the authority conferred under the instrument to
include authority to make decisions on his behalf in
circumstances where he no longer has capacity,
30
(c)
a statement by the donor—
(i)
naming a person or persons whom the donor wishes to be
notified of any application for the registration of the
instrument, or
(ii)
stating that there are no persons whom he wishes to be
35
notified of any such application,

Mental Capacity Bill
Schedule 1 — Lasting powers of attorney: formalities
Part 2 — Registration
36

(d)
a statement by the donee (or, if more than one, each of them) to the
effect that he—
(i)
has read the prescribed information or a prescribed part of it,
and
(ii)
understands the duty imposed on a donee of a lasting power
5
of attorney under section 4 (best interests), and
(e)
a certificate by a person of a prescribed description that, in his
opinion, at the time when the donor executes the instrument—
(i)
the donor understands the purpose of the instrument and the
scope of the authority conferred under it,
10
(ii)
no fraud or undue pressure is being used to induce the donor
to create a lasting power of attorney, and
(iii)
there is nothing else which would prevent a lasting power of
attorney from being created by the instrument.
      (2)
Regulations may—
15
(a)
prescribe a maximum number of named persons;
(b)
provide that, where the instrument includes a statement under sub-
paragraph (1)(c)(ii), two persons of a prescribed description must
each give a certificate under sub-paragraph (1)(e).
      (3)
The persons who may be named persons do not include a person who is
20
appointed as donee under the instrument.
      (4)
In this Schedule “named person” means a person named under sub-
paragraph (1)(c).
      (5)
A certificate under sub-paragraph (1)(e)—
(a)
must be made in the prescribed form, and
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(b)
must include any prescribed information.
      (6)
The certificate may not be given by a person appointed as donee under the
instrument.
Failure to comply with prescribed form
3     (1)
If an instrument differs in an immaterial respect in form or mode of
30
expression from the prescribed form, it is to be treated by the Public
Guardian as sufficient in point of form and expression.
      (2)
The court may declare that an instrument which is not in the prescribed form
is to be treated as if it were, if it is satisfied that the persons executing the
instrument intended it to create a lasting power of attorney.
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Part 2
Registration
Applications and procedure for registration
4     (1)
An application to the Public Guardian for the registration of an instrument
intended to create a lasting power of attorney—
40
(a)
must be made in the prescribed form, and
(b)
must include any prescribed information.
      (2)
The application may be made—
(a)
by the donor,

Mental Capacity Bill
Schedule 1 — Lasting powers of attorney: formalities
Part 2 — Registration
37

(b)
by the donee or donees, or
(c)
if the instrument appoints two or more donees to act jointly and
severally, by any of the donees.
      (3)
The application must be accompanied by—
(a)
the instrument, and
5
(b)
any fee provided for under section 56(4)(b).
      (4)
A person who, in an application for registration, makes a statement which
he knows to be false in a material particular is guilty of an offence and is
liable—
(a)
on summary conviction, to imprisonment for a term not exceeding 12
10
months or a fine not exceeding the statutory maximum or both;
(b)
on conviction on indictment, to imprisonment for a term not
exceeding 2 years or a fine, or both.
5
Subject to paragraphs 11 to 13, the Public Guardian must register the
instrument as a lasting power of attorney at the end of the prescribed period.
15
Notification requirements
6     (1)
A donor about to make an application under paragraph 4(2)(a) must notify
any named persons that he is about to do so.
      (2)
The donee (or donees) about to make an application under paragraph 4(2)(b)
or (c) must notify any named persons that he is (or they are) about to do so.
20
7
As soon as is practicable after receiving an application by the donor under
paragraph 4(2)(a), the Public Guardian must notify the donee (or donees)
that the application has been received.
8     (1)
As soon as is practicable after receiving an application by a donee (or
donees) under paragraph 4(2)(b), the Public Guardian must notify the donor
25
that the application has been received.
      (2)
As soon as is practicable after receiving an application by a donee under
paragraph 4(2)(c), the Public Guardian must notify—
(a)
the donor, and
(b)
the donee or donees who did not join in making the application,
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that the application has been received.
9     (1)
A notice under paragraph 6 must be made in the prescribed form.
      (2)
A notice under paragraph 6, 7 or 8 must include such information, if any, as
may be prescribed.
Power to dispense with notification requirements
35
10
The court may—
(a)
on the application of the donor, dispense with the requirement to
notify under paragraph 6(1), or
(b)
on the application of the donee or donees concerned, dispense with
the requirement to notify under paragraph 6(2),
40

if satisfied that no useful purpose would be served by giving the notice.
Deputy already appointed
11    (1)
Sub-paragraph (2) applies if it appears to the Public Guardian that—

Mental Capacity Bill
Schedule 1 — Lasting powers of attorney: formalities
Part 2 — Registration
38

(a)
there is a deputy appointed by the court for the donor, and
(b)
the powers conferred on the deputy would, if the instrument were
registered, to any extent conflict with the powers conferred on the
attorney.
      (2)
The Public Guardian must not register the instrument unless the court
5
directs him to do so.
Objection by donee or named person
12    (1)
Sub-paragraph (2) applies if a donee or a named person—
(a)
receives a notice under paragraph 6, 7 or 8 of an application for the
registration of an instrument, and
10
(b)
before the end of the prescribed period, gives notice to the Public
Guardian of an objection to the registration on the ground that an
event mentioned in section 13(3) or (6)(a) to (d) has occurred which
has revoked the instrument.
      (2)
The Public Guardian must not register the instrument if he is satisfied that
15
the ground for making the objection is established.
      (3)
Sub-paragraph (4) applies if a donee or a named person—
(a)
receives a notice under paragraph 6, 7 or 8 of an application for the
registration of an instrument, and
(b)
before the end of the prescribed period—
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(i)
makes an application to the court objecting to the registration
on a prescribed ground, and
(ii)
notifies the Public Guardian of the application.
      (4)
The Public Guardian must not register the instrument unless the court
directs him to do so.
25
Objection by donor
13    (1)
This paragraph applies if the donor—
(a)
receives a notice under paragraph 8 of an application for the
registration of an instrument, and
(b)
before the end of the prescribed period, gives notice to the Public
30
Guardian of an objection to the registration.
      (2)
The Public Guardian must not register the instrument unless the court, on
the application of the donee or, if more than one, any of them—
(a)
is satisfied that the donor lacks capacity to object to the registration,
and
35
(b)
directs the Public Guardian to register the instrument.
Notification of registration
14
Where an instrument is registered under this Schedule, the Public Guardian
must give notice of the fact in the prescribed form to—
(a)
the donor, and
40
(b)
the donee or, if more than one, each of them.

Mental Capacity Bill
Schedule 1 — Lasting powers of attorney: formalities
Part 4 — Records of alterations in registered powers
39

Evidence of registration
15    (1)
A document purporting to be an office copy of an instrument registered
under this Schedule is, in any part of the United Kingdom, evidence of—
(a)
the contents of the instrument, and
(b)
the fact that it has been registered.
5
      (2)
Sub-paragraph (1) is without prejudice to—
(a)
section 3 of the Powers of Attorney Act 1971 (c. 27) (proof by certified
copy), and
(b)
any other method of proof authorised by law.
Part 3
10
Cancellation of registration
16    (1)
The Public Guardian must cancel the registration of an instrument as a
lasting power of attorney on being satisfied that the power has been
revoked—
(a)
as a result of the donor’s bankruptcy, or
15
(b)
on the occurrence of an event mentioned in section 13(6)(a) to (d).
      (2)
If the Public Guardian cancels the registration of an instrument he must
notify—
(a)
the donor, and
(b)
the donee or, if more than one, each of them.
20
17
The court must direct the Public Guardian to cancel the registration of an
instrument as a lasting power of attorney if it—
(a)
determines under section 22(2)(a) that a requirement for creating the
power was not met,
(b)
determines under section 22(2)(b) that the power has been revoked
25
or has otherwise come to an end, or
(c)
revokes the power under section 22(4)(b) (fraud etc.).
18
On the cancellation of the registration of an instrument, the instrument and
any office copies of it must be delivered up to the Public Guardian to be
cancelled.
30
Part 4
Records of alterations in registered powers
Partial revocation or suspension of power as a result of bankruptcy
19
If in the case of a registered instrument it appears to the Public Guardian that
under section 13 a lasting power of attorney is revoked, or suspended, in
35
relation to the donor’s property and affairs (but not in relation to other
matters), the Public Guardian must attach to the instrument a note to that
effect.
Termination of appointment of donee which does not revoke power
20
If in the case of a registered instrument it appears to the Public Guardian that
40
an event has occurred—

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Schedule 2 — Property and affairs: supplementary provisions
40

(a)
which has terminated the appointment of the donee, but
(b)
which has not revoked the instrument,

the Public Guardian must attach to the instrument a note to that effect.
Replacement of donee
21
If in the case of a registered instrument it appears to the Public Guardian that
5
the donee has been replaced under the terms of the instrument the Public
Guardian must attach to the instrument a note to that effect.
Notification of alterations
22
If the Public Guardian attaches a note to an instrument under paragraph 19,
20 or 21 he must give notice of the note to the donee or donees of the power
10
(or, as the case may be, to the other donee or donees of the power).
Schedule 2
Section 18(4)

Property and affairs: supplementary provisions
Wills: general
1
Paragraphs 2 to 4 apply in relation to the execution of a will, by virtue of
15
section 18, on behalf of P.
Provision that may be made in will
2
The will may make any provision (whether by disposing of property or
exercising a power or otherwise) which could be made by a will executed by
P if he had capacity to make it.
20
Wills: requirements relating to execution
3     (1)
Sub-paragraph (2) applies if under section 16 the court makes an order or
gives directions requiring or authorising a person (“the authorised person”)
to execute a will on behalf of P.
      (2)
Any will executed in pursuance of the order or direction—
25
(a)
must state that it is signed by P acting by the authorised person,
(b)
must be signed by the authorised person with the name of P and his
own name, in the presence of two or more witnesses present at the
same time,
(c)
must be attested and subscribed by those witnesses in the presence
30
of the authorised person, and
(d)
must be sealed with the official seal of the court.
Wills: effect of execution
4     (1)
This paragraph applies where a will is executed in accordance with
paragraph 3.
35
      (2)
The Wills Act 1837 (c. 26) has effect in relation to the will as if it were signed
by P by his own hand, except that—

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Schedule 2 — Property and affairs: supplementary provisions
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(a)
section 9 of the 1837 Act (requirements as to signing and attestation)
does not apply, and
(b)
in the subsequent provisions of the 1837 Act any reference to
execution in the manner required by the previous provisions is to be
read as a reference to execution in accordance with paragraph 3.
5
      (3)
The will has the same effect for all purposes as if—
(a)
P had had the capacity to make a valid will, and
(b)
the will had been executed by him in the manner required by the
1837 Act.
      (4)
But sub-paragraph (3) does not have effect in relation to the will—
10
(a)
in so far as it disposes of immovable property outside England and
Wales, or
(b)
in so far as it relates to any other property or matter if, when the will
is executed—
(i)
P is domiciled outside England and Wales, and
15
(ii)
the condition in sub-paragraph (5) is met.
      (5)
The condition is that, under the law of P’s domicile, any question of his
testamentary capacity would fall to be determined in accordance with the
law of a place outside England and Wales.
Vesting orders ancillary to settlement etc.
20
5     (1)
If provision is made by virtue of section 18 for—
(a)
the settlement of any property of P, or
(b)
the exercise of a power vested in him of appointing trustees or
retiring from a trust,

the court may also make as respects the property settled or the trust property
25
such consequential vesting or other orders as the case may require.
      (2)
The power under sub-paragraph (1) includes, in the case of the exercise of
such a power, any order which could have been made in such a case under
Part 4 of the Trustee Act 1925 (c. 19).
Variation of settlements
30
6     (1)
If a settlement has been made by virtue of section 18, the court may by order
vary or revoke the settlement if—
(a)
the settlement makes provision for its variation or revocation,
(b)
the court is satisfied that a material fact was not disclosed when the
settlement was made, or
35
(c)
the court is satisfied that there has been a substantial change of
circumstances.
      (2)
Any such order may give such consequential directions as the court thinks
fit.
Vesting of stock in curator appointed outside England and Wales
40
7     (1)
Sub-paragraph (2) applies if the court is satisfied—
(a)
that under the law prevailing in a place outside England and Wales
a person (“M”) has been appointed to exercise powers in respect of
the property or affairs of P on the ground (however formulated) that